Criminal Law @ Moritz College of Law

Seeking just one more attorney for Joe Shooter role play....

As of this writing, I believe we have five (very special) students who have agreed to fill positions for Monday's homicide role play. Lawyers for both sides in Ohio are "booked" and three others have expressed an openness to be in other roles. But we still need one more person to be a lawyer in California or Kansas.

As mentioned before, if nobody volunteers for the last open role, I will have to assign the final Joe Shooter role today in class.  So, if you were thinking about this but were unsure, now is the chance to jump in AND use the comments (or send me an email) to do so. Thanks.

Ohio's primary homicide provisions (in full)

As mentioned in class, I will be providing a handy-dandy version of Ohio's homicide provisions in class on Friday.  But here are the provisions in all their original glory:

• 2903.01 Aggravated murder.

• 2903.02 Murder.

• 2903.03 Voluntary manslaughter.

• 2903.04 Involuntary manslaughter.

• 2903.041 Reckless homicide.

• 2903.05 Negligent homicide.

• 2903.06 Aggravated vehicular homicide - vehicular homicide - vehicular manslaughter.

Thoughts?  Getting in the habit of identifying key similarities and differences to the MPC approach to homicide (and the approached of other states) would serve you well for much of October.

A few Ohio cases with contested causation

As I mentioned in class, Ohio tends to adopt "common law" approach to causation doctrines.  In this post on this blog a few years ago, I flagged four of the very rare Ohio criminal cases in which causation doctrines are discussed.  Here are two of those cases I consider the most interesting on the facts, and I will here just provide the cites and facts.  You will have to look up the cases if you want to see how they worked out:

1.  Ohio v Lovelace, 137 Ohio App. 3d 206 (1st Dist. App. 1999), gets started this way:

The issue in this appeal is whether a person who leads police on a high-speed car chase can be found guilty of involuntary manslaughter when one of the police cruisers in pursuit runs a stop sign and collides with another vehicle, killing the driver. The answer turns on whether the evidence was sufficient to support the jury's finding that the defendant-appellant, Paul Wayne Lovelace, should have foreseen the fatal accident as a consequence of his own reckless behavior. At the time of the accident, Lovelace was driving a stolen car and had already led Ohio and Kentucky police on a multi-car chase that reached speeds of one hundred miles per hour, crossed back and forth over the Ohio River, and caused several collisions and near collisions in both states.

Lovelace argues that he cannot be guilty of involuntary manslaughter because he could not possibly have foreseen that the officer would disregard the stop sign — although he had done so himself only moments before.  In his view, the police officer's failure to stop was an intervening cause of the accident, absolving him of criminal responsibility.  Lovelace also contends that his trial was unfair because the trial court's evidentiary rulings deprived him of the opportunity to present crucial evidence, and because the jury instructions misled the jury on the critical issue of proximate cause.

2.  Ohio v Voland, 716 N.E.2d 299 (Ohio Com. Pl. 1999), involves these essential facts:

[T]he defendant, while under administrative license suspension growing out of her arrest for driving under the influence of alcohol, drove her vehicle from the western side of Hamilton County to the Cincinnati Sand Volleyball Courts ... accompanied on that drive and at the courts by her daughter, Alexandria, age four, and a cousin, Ashley Weaver, age twelve.... At some point after her arrival at the Cincinnati Sand Volleyball Courts, Voland was approached by her cousin, Ashley Weaver, who complained that she was hot and bored. Ashley Weaver was watching Voland’s daughter, Alexandria.

At that time, the defendant gave her twelve-year-old cousin the keys to her car so that Ashley could get in and start the car to permit the air conditioning to work, allowing Ashley and Alexandria to cool off and wait while defendant played volleyball.  The two children got into the car, started the car, turned on the air conditioning, and listened to the radio. They played in the car while the engine was running, in excess of ninety minutes unattended, with the exception of one visit by defendant. During the one visit, defendant did not notice any attempts to move the vehicle.

At approximately 8:10 p.m., with the two girls playing in the automobile and the engine running, the car lurched forward, over a parking block six to eight inches in height, across a short, grassy area of four to six feet, where the auto struck a fence.  The fence, approximately six to eight feet in height, had a four-by-four post nailed vertically to it, apparently to seam two sections of the fence together. This fence post cracked and fell to the ground on the inside of the fence, striking Steven Smith in the head, causing injuries that resulted in his death.

Any students eager to earn extra credit should feel free to use their new Lexis skills to look for, and report in the comments, more recent interesting causation cases from Ohio courts.

Some "recent" SCOTUS cases on causation in federal law

As I mentioned in class, not too long ago the Supreme Court issued rulings in a couple of cases dealing with some causation issues we will be discussing.  You are NOT required or even expected to read these cases, but you might still find it interesting to see the settings in which SCOTUS can confront issues that we are reviewing.  Here are links to the rulings, along with the start of the Court's opinion in each case:

Burrage v. United States (January 2014):  "The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when 'death or serious bodily injury results from the use of such substance.' 21 U.S.C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.).  We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury."

Paroline v. United States (April 2014): "This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed.  The relevant statutory provisions are set forth at 18 U.S.C. §2259.  Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

"Petitioner Doyle Randall Paroline pleaded guilty to such an offense.  He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.  The question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under §2259."

How Rhode Island changed its child abuse law after Lima

Our casebook mentions how New York amended its drug statutes after Ryan, but I think it also notable how the Rhode Island legislature responded to the Lima case.  Here is the story via a subsequent Rhode Island ruling, State v. Sivo, 925 A.2d 901 (R.I. 2007):

In Lima, the defendant was convicted of first-degree child abuse for lowering a small child into a bathtub of scalding water, causing him to suffer permanent disfigurement or disability.  The child abuse statute implicated in Lima, § 11-9-5.3(a), provided, in pertinent part, that "[w]henever any * * * [caretaker] * * * abuses [a] child by inflicting upon said child a physical injury, to the extent the child is permanently disfigured or disabled, he or she shall be guilty of child abuse in the first degree * * *." General Laws 1956 (1981 Reenactment) § 11-9-5.3, as amended by P.L.1983, ch. 179, § 1.   Evidence introduced at trial showed that the defendant told the child's father that she had intentionally put the child in the bathtub to wash him, but had not first checked the water temperature, which, unbeknownst to the defendant, was far too hot.  Lima, 546 A.2d at 771.  The trial justice instructed the jury on the elements of the child abuse statute, but did not instruct the jury that intent was a necessary element of the crime charged. Id.   The defendant appealed, alleging that the trial justice committed error when he refused to instruct the jury that an intentional act was required. Id. This Court held that the trial justice's refusal to so instruct the jury constituted reversible error. Id. at 772.  Because the child abuse statute in place at the time was entirely devoid of words of intent, we adopted a standard similar to that set forth in the Model Penal Code (MPC), requiring that "[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto." Lima, 546 A.2d at 772 (quoting Model Penal Code, § 2.02(3) at 226 (A.L.I. 1985)).  Pursuant to this standard, we directed the trial justice on remand to instruct the jury accordingly, to "protect [][the] defendant from a conviction predicated upon an act devoid of mens rea while at the same time protecting a class of defenseless victims from physical abuse." Id. 

In the years after Lima, the General Assembly enacted numerous amendments to the first-degree child abuse statute.  What is most significant to the instant litigation is that, in 1995, the General Assembly added words of intent, prescribing punishment only for those individuals who “knowingly or intentionally” inflict a serious bodily injury upon a child.  These statutory words of intent effectively superseded the MPC-inspired words of intent we adopted in Lima..... [where] our concern was the possibility that the jury convicted the defendant without finding that she had acted with a mens rea.

As I mentioned in class, I will be eager to start our next class by hearing comments on why we think New York's legislature amended one statute to eliminate a mens rea requirement, but Rhode Island's legislature amended a distinct statute to add/enhance a required mens rea.   Or, better yet, start the discussion in the comments.

Making it through "mistakes" by mapping statutes' elements (and providing here the being interpreted in Lima)

As we have discussed throughout the semester, it is always important to identify all the critical elements of an offense within a statute (namely those parts of the offense that a prosecution must prove beyond a reasonable doubt in order to show the defendant is guilty of the particular crime charged).  Our discussion of Ohio Revised Code Section 2909.03 highlighted how challenging this can be when legislatures have written statutes in complicated ways (which they often do).

As we are getting deep into the topic of mens rea, you should be starting to appreciate that many elements of an offense within a statute can (and typically do) have both an actus reus and a mens rea component.  For that reason, and especially as we get into the complicated "mistakes" cases, I urge everyone to take the time to map out all the elements with --- both the act and mental states required --- under whatever statute is being debated.  After mapping out the elements, it can and should be easier to identify what particular elements are (and are not) subject to legal or factual debate.

Helpfully, the cases in the text usually set out the applicable statute or explain what elements are at issue.  But not always, as in Lima the then-applicable Rhode Island statute is not provides in the text.  So I have provided it here:

Rhode Island General Laws 1956 (1981 Reenactment) § 11-9-5.3: "[w]henever any * * * [caretaker] * * * abuses [a] child by inflicting upon said child a physical injury, to the extent the child is permanently disfigured or disabled, he or she shall be guilty of child abuse in the first degree * * *." 

We will definitely get through Ryan and Lima and probably Baker in our first class this week.  We will definitely finish all the mistake cases and likely get tho capacity by the end of this week.

Some information and background on the debate over mens rea reform at the federal level

I mentioned in class that there is an on-going debate over proposals to revise the federal criminal code's messy approach to mens rea.  In an effort not to overload you with (distracting) information about this debate, I will be content here to spotlight one press release and one background article:

Press release (dated June 22, 2018): "Hatch, Grassley Introduce Bill to Strengthen and Clarify Intent Requirements in Federal Criminal Law":

Today, Senators Orrin Hatch (R-UT), the former Chairman of the Senate Judiciary Committee, and Chuck Grassley (R-IA), the current Chairman of the Judiciary Committee, introduced legislation to clarify and strengthen intent requirements in our federal criminal laws.  The problem of overcriminalization is complex, and it includes the lack of clear mens rea requirements in much of our criminal laws.

The Mens Rea Reform Act of 2018 would strengthen the intent requirements in our federal criminal laws. And it would make these changes in a responsible way by establishing an extended process for federal agencies and Congress, with the assistance of a National Criminal Justice Commission and input from the public, to clarify the mens rea requirements in our existing criminal laws. 

Atlantic article (dated Oct 26, 2017): "Could a Controversial Bill Sink Criminal-Justice Reform in Congress?: A debate over mens rea stalled the last push for reform. Now, a similar battle could be brewing."

A bill drafted by a group of Senate Republicans earlier this year would tweak the mens rea requirement in federal statutes, adding a default rule for juries to find criminal intent for federal offenses that don’t explicitly have an intent standard. (Mens rea is a legal term derived from the phrase “guilty mind” in Latin.) If enacted, federal prosecutors would need to prove a defendant’s state of mind to obtain a conviction for a host of existing crimes. Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration. But some Senate Democrats fear the measure is far too sweeping and could be a back-door attack on federal health and environmental regulations that police corporate behavior.

"Why are Oliwood's legislators not troubled by spilled blood on our roads? Are they all in the pocket of Big Oil?"

Published this morning in the Oliwood Daily FN Reporter Beacon Plain Dealer Dispatch Enquirer Blade was this editorial under the headline that serves as the title of this post.  Here is how it reads:

The statistics are grim, even though we do not like to think about them. Here in Oliwood, as in neighboring Ohio, throughout the summer months more than three people died and nearly 300 persons are injured every single day on our state's roadways.  Among the hundreds killed on our roadways were more than a dozen innocent young children; hundred of children were among those crippled in car accidents.

Perhaps we want to believe the these problems are cause by drunk drivers or mostly night driving, but data reveals that alcohol-impaired drivers generally account for less than 4% of all crashes and that more than three-quarters of all car crashes occur during the daylight in the summer months.  So what's to blame?  Of course, distracted driving is a persistent problem, but our legislature has wisely passed criminal laws to address this modern problem.

What data and research show is that an age-old problem is a big part of the story: rain and wet roads.  A government research paper has documented the huge number of crashes that occur due to wet weather, and it has suggested that, for the sake of public safety, more should be done to ensure "drivers understand the dangers of rain and wet pavement."

Against this backdrop, it was heartening to see a brave staffer propose yesterday to the Oliwood legislature a bold new approach for making our roads safer.  The proposal makes it a minor crime if a driver causes injury or damage while driving in the rain.  As with criminal laws prohibiting texting while driving, it seems to us unlikely that this proposed law would lead to prosecutions after every rainy crash, but it does seem likely that this law could raise needed awareness about the extra hazards that come with driving in the rain and lead to more caution exercised by drivers.  We also expect prosecutors could use this law to better go after reckless drivers who repeatedly drive and cause harm in dangerous conditions.

Especially with a rainy weekend forecast, the editorial board was hopeful the proposed "Criminal Damaging While Driving in the Rain" statute would get a warn reception among Oliwood's legislators.  But, disconcertingly, very few Oliwood Senators seemed inclined to support the bill during initial discussion.  The editorial board of the Oliwood Daily FN Reporter Beacon Plain Dealer Dispatch Enquirer Blade is left to wonder why Oliwood's legislators seem not at all troubled by all the spilled blood on our roads. 

One would hope our representatives would be proactive and creative in response to the daily (and seemingly preventable) slaughter of the people they are supposed to represent.  Some Senators were heard to express concern that the proposed statute might reduce driving, but would that be so bad if less driving means more young lives preserved and injuries averted?  Of course, less driving might mean less profits for the big oil companies.  Could that be who Oliwood's legislators really care most about?

UPDATE: The Oliwood Daily FN Reporter Beacon Plain Dealer Dispatch Enquirer Blade editorial board wishes to add: "The need for greater efforts to encourage safer driving should be clear every time you open the paper, as this article from neighboring Ohio shows: 'Semi crash closes I-70 EB on East Side during soggy Sunday'."

Some data to support a proposed "Driving in the Rain" criminal law in Oliwood

This headline from a USA Today article says it all: "Surprise: Rain is the deadliest weather driving hazard."  This press article about the driving during rainy conditions is hardly a surprise given well-known data on the extent of the rain-driving problem.  As explained in this government website drawing on a decade of crash data (with emphasis added):

On average, nearly 6,000 people are killed and over 445,000 people are injured in weather-related crashes each year.  The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 73% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions: 17% during snow or sleet, 13% occur on icy pavement and 14% of weather-related crashes take place on snowy or slushy pavement. Only 3% happen in the presence of fog.

In other words, nearly 1000 people in the US are injured every single day thanks to folks crashing while driving in the rain.  And, as this government paper states not only that "wet weather is far more dangerous than winter weather," but also that "weather-related crashes cause between 94 million and 272 million hours of delay each year [with the] annual cost of weather-related crashes estimated to be between $22 billion and $51 billion."

Of course, any proposed driving-in-the-rain criminal law will not prevent all or even most weather-related crashes (just like existing drunk-driving and texting-while-driving criminal laws do not prevent all other dangerous-driving crashes).  But if a proposed new criminal law can reduce the number of weather-related crashes by even just 10%, that could save dozens of innocent lives, reduce by hundreds the number of Oliwood citizens injured on the roadways, and save millions of dollars each and every year.

The simple proposed draft text for a "Driving in the Rain" criminal liability statute appears below, and it is important to note that it does not call for punishing people for driving in the rain, but really only for crashing in the rain.  I look forward to hearing whether and why Oliwood legislators support or oppose this use of the criminal law in our great state.

PROPOSED OPC Section 55.55: Criminal Damaging While Driving in the Rain:  No person shall cause any physical harm to any other person or to the property of another while driving in the rain.  Punishment for a violation of this section shall depend upon the amount of harm caused and other relevant factors in the discretion of the sentencing judge.

Register for upcoming panels on Issue 1 ... and consider authoring an original commentary

I have mentioned briefly in class that the Drug Enforcement and Policy Center (DEPC) here at the College of Law will be sponsoring a series of panels over the next three months to discuss Ohio Issue 1.  The sponsors of Ohio Issue 1 titled their initiative "The Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," but on the ballot it will be officially described as "Issue 1 To Reduce Penalties for Crimes of Obtaining, Possessing, and Using Illegal Drugs."  As this different wording suggests, there is already much debate over just what this ballot initiative seeks to do and what its impact could be.

In short form, Issue 1 proposes to amend the Ohio Constitution to preclude prison terms for drug possession offenses and less serious probation violations, to expand sentence reductions for prisoners participating in rehabilitative programming, and to redirect funds saved from reduced incarceration to drug treatment and victims' services.  DEPC's series of panels on Issue 1, which we are calling Ballot Insights, aims to unpack the complicated issues and provide a venue for informed discussion of the policies and politics surrounding Ohio Issue 1. 

You can see details about each of the planned panels in this Ballot Insights Poster, and you can register for one or more of the panels at this link.  (As I mentioned at the outset of the course, we may have to cancel a few classes through the semester and then figure out how best to schedule make-up classes.  Because the Issue 1 panels will be covering topics directly relevant to our class, I might consider significant attendance at these panels to qualify as one make-up class.  You should register and attend these sessions for lots of reasons, but an extra incentive never hurt.)

In addition to planning to attend the Issue 1 panel discussions, you should consider checking out some of the Issue 1 resources assembled on the bottom of this webpage ranging from official position statements to media coverage.  DEPC is not only assembling these resources, but also is soliciting original commentaries on Issue 1 from a wide array of researchers, policymakers and advocates.  Check back in the next few weeks when some of these commentaries will start to appear on the DEPC website.

As the title of this post indicates, the invitation to submit short commentaries on Issue 1 (around 1000 words) extends to law students.  I sincerely believe that, even for folks just a few weeks into law school, law students might have a distinct and distinctly useful perspective on issues large and small surrounding the substance and style of Issue.  So, with all that extra time you have as a 1L, consider authoring a commentary this fall for publication through DEPC's website.